Editors’ note: We are reposting this piece, originally published Dec. 5, 2021, in light of news that the Supreme Court is circulating a draft opinion that would overturn Roe v. Wade.
On Wednesday, Dec. 1, 2021, the Supreme Court heard oral arguments in what is shaping up to be the biggest abortion case in a generation. In Dobbs v. Jackson Women’s Health, the justices are considering whether Mississippi’s Gestational Age Act, which bans abortion after 15 weeks, is consistent with the constitutionally protected right of a woman to seek an abortion, which the court established in Roe v. Wade in 1973 and reaffirmed in Planned Parenthood v. Casey in 1992.
During the nearly two hours of oral argument, the justices debated whether those earlier courts were correct in previously declaring that abortion could not be limited before “viability” — the 23-week mark at which a fetus can survive outside the uterus. They also sparred over the questionable science about when a fetus could feel pain that Mississippi used to justify the ban.
But the most striking parts of the oral argument in Dobbs put the Supreme Court on trial. The liberal justices repeatedly warned that a decision that upheld this abortion ban would irreparably damage the public sense of the court’s legitimacy. As Justice Sonia Sotomayor remarked, “If people actually believe it’s all political, how will we survive? How will the court survive?”
Political science corroborates these fears. When judges are viewed as partisan politicians in robes, public perception of their legitimacy suffers. As we explain here, the Supreme Court’s current legitimacy crisis is about more than this one abortion case. Americans have begun to lose confidence in its decisions because of a long-term conservative strategy that has intentionally and effectively targeted the judiciary as a way to carry out its political agenda.
Everyone is debating the Supreme Court’s ‘legitimacy.’ Here’s what it means.
Conservative lawyers attacked campaign finance to get to abortion
The road to overruling Roe runs through the 2010 decision Citizens United v. FEC, which effectively deregulated campaign financing.
At the center of this effort was a single conservative lawyer, James Bopp. Bopp got involved in fighting campaign finance regulations through his work with the National Right to Life Committee (NRLC), a long-standing antiabortion organization. As the Republican and Democratic parties moved in the 1980s and ‘90s to become the antiabortion and reproductive rights parties respectively, antiabortion activists like Bopp recognized that their policy aspirations were tied to not just the court that decided Roe but to the GOP.
As legal historian Mary Ziegler demonstrates in her forthcoming book, Bopp and the NRLC began working to elect Republican presidents who could nominate Supreme Court justices, Republican senators who could confirm them, and to teach White evangelical voters to connect and care about the Supreme Court and the Republican Party when voting.
Bopp and the NRLC were initially disappointed by their lack of influence in the Republican Party. To increase their sway, they wanted to increase their campaign spending. The theory was that if interest groups like the NRLC could give an unlimited amount of money, they could compete with party insiders for influence, increase their own clout, and get the judicial appointments and rulings that could limit abortion and even overturn Roe.
As political scientist Ann Southworth’s forthcoming work further shows, Bopp was able to collaborate with other ascendant conservative insiders like Mitch McConnell and Betsy DeVos to reorient the Republican Party’s stance on campaign finance and to elect conservative officials who would respond to interest groups like the NRLC.
Scorched-earth politics put the judges who would overturn Roe on the court, but at a price
Working both with the conservative legal juggernaut the Federalist Society and with the Christian conservative legal movement, Bopp and collaborators were successful in securing a six-justice conservative supermajority on the Supreme Court. But they had to play constitutional hardball to do it.
Let’s review the Republican take-no-prisoners strategy to remake the Supreme Court beginning in 2016, when conservative justice Antonin Scalia died — and then-Senate Majority Leader Mitch McConnell refused to hold hearings for President Barack Obama’s nominee to replace him.
Next, after Donald Trump won the presidency, McConnell eliminated the filibuster to confirm Neil M. Gorsuch. Next, Republicans worked together in lockstep to quickly confirm Brett M. Kavanaugh, despite serious allegations of sexual assault.
Finally, when the iconic liberal justice Ruth Bader Ginsburg died just weeks before the November 2020 elections, the Senate confirmed Amy Coney Barrett as her replacement in record time.
In the eyes of some, the GOP’s aggressive targeting of the Supreme Court has put the legitimacy of the judiciary itself at risk, prompting calls for court reform, court-packing and court-curbing.
How the Christian right helped get Amy Coney Barrett confirmed to the Supreme Court
The liberal justices repeatedly warned that this case could destroy the court itself
Given all this, consider the dramatic and repeated warnings by the liberal justices during oral argument in Dobbs that a ruling upholding Mississippi’s abortion ban would be seen by the public as a political, not a legal decision; that to “overrule precedent” on account of “political pressure” would result in a “loss of confidence in the judiciary” and “subvert the Court’s legitimacy.” Sotomayor noted that the sponsors of the bill themselves acknowledged that they had written the bill to cater to the new Trump-appointed conservative justices and asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
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By politicizing the court, conservatives have won big policy victories in gun rights, campaign finance, labor and curtailing voting, among others. They might win on abortion, too. But by pursuing these policy victories at all costs, they may end up undermining the very institution that they have worked to control. If the public views the court as nothing more than politicians in robes, then the Supreme Court itself will have committed legitimacy suicide. As Justice Stephen G. Breyer warns, “That’s what kills us as an American institution.”
See all of TMC’s Supreme Court analysis here.
Joshua C. Wilson (@jcwilson98) is a professor and the chair of the political science department at the University of Denver, and author, most recently, with Amanda Hollis-Brusky, of “Separate but Faithful: The Christian Right’s Radical Struggle to Transform Law & Legal Culture” (Oxford University Press, 2020).